JOHNNY DEXTER T/A JOHNNY GOGGLES OPTICIANS v MRS F O'CONNOR & MRS D GOLDER [1999] UKEAT 714_99_0710

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 714_99_0710

Case No Appeal No. EAT/714/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

JOHNNY DEXTER T/A JOHNNY GOGGLES OPTICIANSAPPELLANT

MRS F O'CONNOR & MRS D GOLDERRESPONDENT

Before

Mr Justice Lindsay

Date 7 October 1999

[1]APPEARANCES For the Appellants MRS TRACEY MCLEVY (of Counsel) Instructed by Messrs Dooley & Co Solicitors PO Box No 5 120/122 Cherryfield Drive Kirkby Merseyside L32 8AA MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of Preliminary Hearing the appeal of Johnny Dexter, trading as Johnny Goggles Opticians, against the decision of the Employment Tribunal at Liverpool, sent to the parties on 22 April of this year. The hearing had been on 22 March. The decision, which was unanimous, was that the Respondent, Johnny Goggles was, as to the two applicants, Mrs F O'Connor and Mrs D Golder, to pay Mrs O'Connor compensation, including interest, in the sum of £2,606.66, to pay Mrs Golder compensation, including interest, in the sum of £3,119.99 and then there were some directions given by consent. It is important to notice that there had been an earlier decision in the Employment Tribunal on 3 March 1999 and that was that each of Mrs O'Connor and Mrs Golder, the complainants, had been victimised contrary to section 4 of the Sex Discrimination Act 1975. There has been no appeal as yet against that decision. Unless a late appeal against that decision were to be allowed, we must proceed on the basis, until then, that the facts found in the 3 March decision and its conclusion that there had been victimisation are well founded and beyond dispute.

[2]So one of the first things that Miss Tracey McLevy addressed us on in a well reasoned argument was that we ought to allow, out of time, an appeal against the earlier decision of 3 March. In part that argument was based on an assertion that the Notice of Appeal put in by Johnny Goggles, which is before us, truly embraced an appeal against the earlier decision. Against that it is quite clear from its terms, which say the Appellant appeals the decision of the Employment Tribunal dated 22 March, received 22 April 1999, that it appeared to direct itself only to the later decision. In paragraph 6 it says:

"6. The grounds upon which the appeal is brought are that the Employment Tribunal erred in law (see attached sheet) and in relation to the awards the amounts are perverse given the evidence heard."

There is nothing about the sixth head that necessarily indicates or even impliedly indicates that there is an appeal against the earlier decision.

[4]So the first thing we have to decide is whether it would be right, hopelessly out of time, to allow Johnny Goggles to appeal against the earlier decision. We do not allow that application. We see no reason why, had there been any intention to appeal the earlier decision, it could not have been lodged in time long ago. And so we must proceed, therefore, on the basis that facts found in the March decision and its conclusion are beyond dispute. In other words we have to proceed on the basis that there was victimisation within section 4(1) and 4(1)(a) of that Act. We have in mind, too, the provisions of section 6(2)(b) of that Act. The consequence is that under section 66 compensation to injury to feelings is a permissible part of overall compensation and no cash limit is prescribed either as to compensation for injury to feelings or, indeed, compensation generally, in that section.

[5]So to some extent an Employment Tribunal had an almost impossible task. There is no real and universally accepted measure by which one can measure injury to feelings. Even if there was, there is no acceptable clear yardstick by which that measured injury to feelings is then to be transmuted in to some award of cash. There is no ascertainable market value of injury to feelings. There are no scales or yardsticks which, in any strict sense, are universally applicable and applied. So, inescapably therefore, the matter has to be one of a broad approach to fact by the Employment Tribunal. That is not to say that a decision on quantum cannot be perverse. There can come a stage at which the EAT or the Court of Appeal or the House of Lords can properly say "That cannot possibly have been right" and, where such a response emerges, there is error of law. But, short of that, unless the Employment Tribunal has in terms referred to or has plainly adopted some incorrect principle, it is very difficult indeed to find some error of law on the subject of the quantification of compensation for injury to feeling and it is, of course, only error of law that we can address.

[6]Now here, as we mentioned, Mrs O'Connor was awarded £2,606 and Mrs Golder £3,119. Those are not figures that cause us to say "That cannot possibly be right". They are not in the technical sense perverse, so we have to look to see if in their award, the Employment Tribunal was espousing some wrong principles. In part, the Employment Tribunal relied upon the unchallenged (as they then were) and (as they have since remained) still unchallenged conclusions of the first hearing. They included a holding of there having been a retaliatory act by the optician - the timing and manner of notification of a transfer of the applicants to Prenton - and also there had been a withholding of an objective reference for Mrs Golder. Beyond those conclusions from the earlier hearing, there was oral evidence on 22 March. Mrs O'Connor gave evidence that she had been caused anxiety, that she felt that the optician was trying to get rid of her, that the optician was treating her so as to cause her to resign or to get another job and that she felt humiliated. That evidence was in terms accepted by the Employment Tribunal. Equally, Mrs Golder gave evidence that her feelings were the same as Mrs O'Connor's, evidence which was in terms accepted by the Tribunal. There is a slightly curious expression used by the Tribunal in relation to the transfer to Prenton, because, having spoken about inconvenience and so on, they say:

"For these matters alone we would award £750, however we increased that by £250 for each because of the cumulative effect."

[7]Miss McLevy has rightly focused on the ambiguity or curiosity of this reference to a cumulative effect. But it does seem to us that it is open to a Tribunal to say that that which, standing alone, might have excited an award of £x, in the full circumstances of other complaints also having obtained, should be met instead with an award of £x plus £y and that, it seems to us, is what was intended to be said. In this case it was not the fact that the transfer to Prenton was the first or only matter complained of and upheld against the opticians; there had been an earlier matter which had been upheld against them. We do not see that a reference to a cumulative effect, which in any event was visited only by an increase of £250 each, leads to any error of law. Whose evidence was to be accepted of course, was very much a matter for the Tribunal and in this instance the evidence of the Applicants was accepted.

[8]We are unable, despite Miss McLevy's attractive argument, to identify any relevant perversity or any error of law in the award. It avails the Appellant nothing to suggest that the Tribunal could have decided to award less. The question is whether the awards which this Tribunal did make was such that no Tribunal properly instructing itself could have made and we do not feel able to describe the awards in that way and accordingly, even at the preliminary stage, we must dismiss the appeal.